Garrett G.B. Robb v. Horizon Communities Improvement Association, Inc.

• Court: Court of Appeals of Texas
• Decided: September 5, 2012
• Docket: 08-11-00236-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

KATHLEEN ROBB AND GARRETT ' G.B. ROBB, No. 08-11-00236-CV ' Appellants, Appeal from the ' v. 327th District Court ' HORIZON COMMUNITIES of El Paso County, Texas ' IMPROVEMENT ASSOCIATION, INC., ' (TC# 2010-3453) Appellee.

MEMORANDUM OPINION

Appellee filed a Motion to Dismiss Appeal on July 18, 2012, seeking to dismiss the appeal

of both Kathleen Robb and Garrett Robb. No response from either Mr. or Ms. Robb has been

received by this Court.

Kathleen Robb has never filed an appeal of the underlying case in her own name.

Therefore, an appeal by Kathleen Robb has not been perfected, as required by the Texas Rules of

Appellate Procedure 26.1. See Restrepo v. First Nat. Bank of Dona Ana County, N.M., 892

S.W.2d 237, 238 (Tex.App.--El Paso 1995, no writ)(applying former TEX.R.APP.P. 40(a)(1) in

noting that a civil appeal is perfected when the notice of appeal is filed). This Court has noted the

failure of Ms. Robb to file either a brief or a motion to extend time to file a brief in previous orders,

and that Mr. Robb’s signing of the appeal did not suffice for purposes of an appeal on behalf of

Ms. Robb. See Order of April 4, 2012; Order of March 1, 2012. The deadlines for filing a notice

of appeal are jurisdictional and, absent a timely filed notice of appeal or a timely filed extension

request, this Court must dismiss the appeal. See TEX.R.APP.P. 25.1(b), 26. Because Kathleen

Robb, by failing to file her own notice of appeal, has failed to perfect an appeal, we dismiss her appeal for want of jurisdiction.

Appellee argues that Mr. Robb failed to comply with Rules 38.1(f), (g), (h), and (i) of the

Texas Rules of Appellate Procedure, and contends that the appeal of Mr. Robb must be dismissed

in accordance with this Court’s previous holding in Martinez v. El Paso County, 218 S.W.3d 841,

844 (Tex.App.--El Paso 2007, pet. struck). Martinez does not provide for dismissal for failing to

comply with these rules specifically, but instead notes that failure to comply with the Rules of

Appellate Procedure results in a waiver of arguments. Id. at 845. We do not address the legal

sufficiency of Mr. Robb’s brief at this time. Appellee’s Motion to Dismiss Mr. Robb’s appeal is

hereby denied.

September 5, 2012 CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera and Antcliff, JJ.